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Solak v. Doe

United States District Court, N.D. New York

February 2, 2017

JOHN SOLAK, Plaintiff,
v.
JOHN DOE, Defendant.

          FOR PLAINTIFF: DOUGLAS W. DRAZEN LAW OFFICE, DOUGLAS W. DRAZEN, ESQ.

          FOR DEFENDANT: NONE.

          REPORT AND RECOMMENDATION

          DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE.

         This is an action brought by plaintiff John Solak against a corporation, Topix, LLC ("Topix"), and a John Doe defendant whose identity is unknown to plaintiff. Plaintiff's claims against Topix have been discontinued, leaving only his claims against defendant Doe. To date, plaintiff has not moved to substitute an identified individual as a defendant in place of defendant Doe. In addition, plaintiff has failed to comply with multiple court directives requiring that he file a status report in this matter. Based upon plaintiff's inaction and disregard for prior court orders, I recommend that his claims against defendant Doe be dismissed without prejudice.

         I. BACKGROUND

         Plaintiff commenced this action on or about April 1, 2016, in New York State Supreme Court. Dkt. Nos. 1, 2. Plaintiff's complaint alleges that defendant Doe published false statements concerning plaintiff's health to Topix Binghamton, an internet discussion forum operated by the former corporate defendant. See generally Dkt. No. 2. Plaintiff claims that the posting caused him to suffer mental anguish and emotional distress. Id.

         Following commencement of the action, Topix, a limited liability company incorporated in Delaware and with a principal place of business in California, removed the action to this court, asserting diversity of citizenship as a basis for the court's subject matter jurisdiction. Dkt. No. 1. On May 12, 2016, three days after removal of the action, Topix filed a motion to dismiss plaintiff's complaint. Dkt. No. 9. Prior to the determination of the motion, the parties filed a stipulation dismissing plaintiff's claims against Topix pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Dkt. No. 14.

         On June 3, 2016, I issued a text order directing plaintiff's counsel to file a report on or before June 17, 2016, advising the court concerning the status of plaintiff's efforts to identify defendant Doe and add him or her as a named party. Dkt. No. 17. In response, plaintiff's counsel timely filed a letter indicating that a subpoena would be served on Topix for information that may assist in identifying defendant Doe. Dkt. No. 18.

         Upon receipt of plaintiff's status report, I issued a second text order, dated June 17, 2016, requiring plaintiff to file a further report with the court concerning his efforts to identify defendant Doe on or before July 18, 2016. Dkt. No. 19. In compliance with that order, plaintiff filed a status report on July 18, 2016, advising that he served the subpoenas referenced in his earlier status report, and that he anticipated he would be receiving information that would allow for the identification of defendant Doe. Dkt. No. 20.

         On July 19, 2016, plaintiff was directed by the court to file a further status report on or before September 19, 2016. Dkt. No. 21. After plaintiff failed to comply with that order, I issued another text order dated October 13, 2016, again requiring a status report to be filed by October 14, 2016. Dkt. No. 22. On October 31, 2016, more than two weeks after the court's deadline, plaintiff filed a status report informing the court that the information he had received as a result of the subpoenas was not particularly fruitful with respect to defendant Doe's identity. Dkt. No. 23. As a result, counsel for plaintiff noted that he was "awaiting [his] client's decision whether to move forward" in the action. Id.

         On November 1, 2016, I issued a text order directing plaintiff's counsel "to file a further status report concerning the matter on or before November 30, 2016." Dkt. No. 24. On the date of the deadline, plaintiff's counsel informed the court by letter that "[t]here has been no change in status since the October 31, 2016 report." Dkt. No. 25.

         On December 8, 2016, the court issued an order informing plaintiff that, "[i]n the event [he] wishes to pursue the remaining claims in this action, he shall take steps to identify and join the Doe defendant in the action on or before January 31, 2017." Dkt. No. 26 at 4. To date, the court has not received any correspondence from plaintiff or his counsel regarding the status of the action or plaintiff's efforts to identify defendant Doe, nor has the plaintiff filed a motion to substitute an identified individual for defendant Doe.

         II. DISCUSSION

         Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, order dismissal of an action based on a plaintiff's failure to prosecute or comply with an order of the court.[1] Fed.R.Civ.P. 41(b); Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014); Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J. adopting report and recommendation by Lowe, M.J.). That discretion should be exercised when necessary to "achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); see also Baptiste, 768 F.3d at 216-17 (reiterating that ...


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